What Gives Us The Right To Call Ourselves A Democracy When Section 377 Still Exists?

By John A Raju:

What is democracy? Other than the textbook definition of a government “of the people, by the people and for the people,” there are several deeper aspects to democracy, especially in the Indian context. Our constitution guarantees the right to free speech, the right to equality, the right to practise and propagate one’s religion and several other rights. Fundamentally, this means that we have the basic human right to speak, worship and basically live as is our wont. What goes hand in hand with these rights is the responsibility of not hurting or maligning other citizens through our actions as well.

This basic facet of a democracy, namely the right to do something that we desire that causes no harm or pain to anyone else is the pillar that is shaken by the presence of Section 377 which criminalises gay sex even if it is voluntary. The section states:

“Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

In the above article, the only agreeable part would be criminalising sex with animals as that is clearly a case of animal cruelty. Apart from that, there seems no logical basis for retaining this draconian law, one that was established in the 1800s, and whose time in the pages of the legal books of the world’s largest democracy should have been over by now.

The arguments for retaining the law are flimsy. It was the challenge by several religious groups that led to the overturning of the 2009 Delhi High Court ruling which deemed the article “unconstitutional” and decriminalised homosexuality. If consensual sex is hurting religious sentiments and if everything that hurts religious sentiments is to be criminalised, shouldn’t inter-religious marriage be illegal? (I hope I’m not giving the legislatures any ideas here). I don’t think inter-religious marriages particularly excite people from either of the religions involved, then why are the children of such unions provided benefits and special rights instead of the parents being fined or jailed?

Then there’s the matter of homosexuality being unnatural. Well so is in vitro fertilisation, artificial insemination and surrogacy. Are they illegal? And if we were to make them illegal, would we then be able to honestly call ourselves a democracy? Free and fair elections every five years alone doesn’t make us a democracy. And while our constitution is to be respected and followed, there are times when the spirit of the Law is to be followed rather than the letter. If the Constitution upholds equality, that means every citizen of the country is equal. If he chooses to be a Muslim or Hindu or Christian, the law has to treat him the same because religious belief is a fundamental human right and one cannot be discriminated on the basis of one’s choice of religion. What the religious factions do not understand, and what the apex court of our nation seems not to understand, is that sexuality is as much a fundamental human right and harassing or punishing someone on account of their sexuality is also a grave infringement on the right to equality. (The question of whether sexuality is a choice or not is a debatable one as well because no one remembers choosing to be straight).

If our nation is to pride itself on being the greatest and not just the largest democracy, it cannot compromise on guaranteeing equality and the fight for gay rights is as vital as the ousting of other societal evils like dowry, rape, child labour. The protection of the minority LGBT community is as important as guarding the rights of the several other minorities that constitute our nation.

I’m keeping my fingers crossed on the Supreme Court actually hearing and responding to the curative petitions with the spirit of the constitution in mind.